Filed 6/24/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

ELIAS ITEHUA,

 Defendant and Appellant.

2d Crim. No. B252472

(Super. Ct. No. F495520)

(San Luis Obispo County)

In People v. Butler (1999) 74 Cal.App.4th 557, the defendant was guilty of 

the crime of stalking because he threatened the victim with violence. (Pen. Code, 

§ 646.9.)1 We held the defendant's offense qualified him as a mentally disordered offender 

(MDO). (Butler, supra, 74 Cal.App.4th 557, 561; § 2962, subd. (e)(2)(Q).) 

Here we hold that a defendant whose stalking offense involves implied 

threats of violence also meets the criteria of an MDO. Elias Itehua appeals a judgment 

committing him to the California Department of Mental Health (now known as State 

Department of State Hospitals) for treatment as an MDO, following his conviction of 

stalking. (§ 646.9.) His stalking offense involves a pattern of conduct that "impliedly 

threatened another with the use of force or violence" within the meaning of section 2962, 

subdivision (e)(2)(Q). We affirm.

 

1 All statutory references are to the Penal Code unless otherwise stated.
2

PROCEDURAL FACTS

On July 30, 2013, the Board of Parole Hearings determined that Itehua met 

the criteria of section 2962 to be committed as an MDO. Itehua filed a petition for 

appointment of counsel and hearing to contest the determination. (§ 2966, subd. (b).) 

Psychologist Phylissa Kwartner testified that Itehua has a severe mental 

disorder. She said he suffers from schizophrenia-paranoid type and has a history of 

psychosis and auditory hallucinations. He believes "voices are emanating from his chest."

Itehua was convicted of stalking a married woman in violation of a 

restraining order obtained against him. Itehua repeatedly called, texted, and followed her, 

and "appeared at her house on a regular basis." He had the "manic" delusion that "the 

victim of his offense was in a relationship with him." When he appeared at the victim's 

house on August 1, 2012, she "used pepper spray and called the police." Kwartner said his 

mental disorder was "at least an aggravating, if not, a causal factor" in the commission of 

his stalking offense. 

Kwartner testified Itehua's disorder was not in remission and could not be 

kept in remission without treatment. Itehua received five months of treatment. She said he 

did not "voluntarily follow the treatment plan." He lacks insight about his disorder. He 

represents a substantial danger of physical harm to others because of his disorder. "[H]e 

remains at risk for returning" to the stalking behavior that was involved in his commitment 

offense. Itehua "would likely try to find this victim again upon release." Kwartner said he 

met all the criteria for an MDO commitment.

The trial court found that Itehua met the requisite MDO criteria. The court 

found there was evidence "of some degree of force toward the victim" based on several 

factors: "[Itehua] was stalking her repeatedly," there was a restraining order, and "the 

victim needed to pull out pepper spray to protect herself."

DISCUSSION

Stalking as a Commitment Offense Falling Within Section 2962

We view the evidence in the light most favorable to the judgment drawing all 

reasonable inferences in support of the court's findings. (People v. Ewing (1999) 76 
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Cal.App.4th 199, 209.) We do not decide the credibility of witnesses or weigh the 

evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206-1207.)

Before a prisoner may be committed as an MDO, the court must find that he 

or she committed (1) an offense listed in section 2962, subdivision (e)(2); or 2) an offense 

not listed, "used force or violence, or caused serious bodily injury" (§ 2962, subd. 

(e)(2)(P)); or (3) "[a] crime in which the perpetrator expressly or impliedly threatened

another with the use of force or violence likely to produce substantial physical harm in 

such a manner that a reasonable person would believe and expect that the force or violence 

would be used" (§ 2962, subd. (e)(2)(Q), italics added). "For purposes of this 

subparagraph, substantial physical harm shall not require proof that the threatened act was 

likely to cause great or serious bodily injury." (Ibid.) 

Itehua notes that stalking is not one of the listed crimes in section 2962. He 

contends that to qualify for an MDO commitment, his offense must fall within one of the

"catch all" provisions of the statute. He argues his stalking offense (§ 646.9) was not "a 

crime of force or violence, as required for commitment under the MDO statute."

(Boldface omitted.)

Section 646.9, subdivision (a) provides: "Any person who willfully, 

maliciously, and repeatedly follows or willfully and maliciously harasses another person 

and who makes a credible threat with the intent to place that person in reasonable fear for 

his or her safety, or the safety of his or her immediate family is guilty of the crime of 

stalking . . . ." (Italics added.) Consequently, proof that the defendant made "a credible 

threat" is a required element for a conviction of stalking. (People v. Ewing, supra, 76 

Cal.App.4th at p. 210.) 

In Butler, we held that a defendant who committed the offense of stalking 

came within the commitment offense requirement for an MDO commitment. (People v. 

Butler, supra, 74 Cal.App.4th at p. 561.) "Appellant's stalking conviction under section 

646.9 meets the criteria of section 2962, subdivision (e)(2)(Q)." (Ibid.) "A conviction 

under section 646.9, subdivision (a) necessarily meets the definition of force . . . ." (Id. at 

p. 560, italics added.) 
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Itehua claims Butler is distinguishable because there the defendant made a

verbal threat of violence and made no verbal threats. "[The defendant] followed his victim 

and threatened to kill her and members of her immediate family." (People v. Butler, supra, 

74 Cal.App.4th at pp. 561-562.) Kwartner acknowledged in her testimony that Itehua did 

not "verbally" threaten the victim with violence. 

The stalking statute defines a "credible threat" as "a verbal or written threat

. . . or a threat implied by a pattern of conduct . . . made with the intent to place the person 

that is the target of the threat in reasonable fear for his or her safety . . . and made with the 

apparent ability to carry out the threat . . . . " (§ 646.9, subd. (g), italics added.) The MDO

statutory scheme and section 646.9 are harmonious. They contain similar language and

were enacted to achieve the same underlying goal to protect the public.

An implied credible threat may be inferred from a pattern of stalking 

conduct. (People v. Uecker (2009) 172 Cal.App.4th 583, 595 ["a reasonable jury could 

have found that defendant made an implied threat to her safety in that he was going to do 

whatever he needed to get M. to go out with him"]; People v. Falck (1997) 52 Cal.App.4th 

287, 299 ["it can be inferred that appellant intended to cause fear in the victim from the 

fact that he insisted on maintaining contact with her although she clearly was attempting to 

avoid him, and although he had been warned away by the police"].)

The trial court reasonably inferred Itehua's pattern of conduct was an implied 

credible threat. The victim was a married woman with children who did not want Itehua to 

contact her. Kwartner said she "was trying to get away from him; she had a restraining 

order against him." But Itehua violated that restraining order. Kwartner further testified, 

"Itehua continued to call her, text her, follow her, he appeared at her house on a regular 

basis. He continued calling her despite her changing her phone number nine times. . . . He 

also went to the victim's husband's workplace and harassed him." Itehua had an 

"erotomanic delusion" that he "was in a relationship with his victim." On August 1, 2012, 

Itehua went to her home again. The victim "used pepper spray and called the police."

"[S]talking is an act of domestic violence . . . ." (People v. Ogle (2010) 185 

Cal.App.4th 1138, 1140.) In Butler, we held stalking is an MDO qualifying offense where 
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the defendant made express threats, but we did not exclude stalking involving a pattern of 

implied threats. "An implied threat of force was one that 'invited resistance or escape with 

possible resulting injury.'" (People v. Butler, supra, 74 Cal.App.4th at p. 560.) Here the 

trial court reasonably inferred that Itehua's pattern of conduct was an implied threat that 

invited resistance or escape. Harassment restraining orders are issued on a showing that

there is "a course of conduct that would place a reasonable person in fear for his or her 

safety." (Code Civ. Proc., § 527.6, subd. (b)(2).) 

Itehua violated the restraining order to achieve his "erotomanic delusion."

This would instill fear in any reasonable person repeatedly targeted by a severely mentally 

disordered man who held such a delusion. Indeed, the trial court found the victim "needed 

to pull out pepper spray to protect herself."

The judgment is affirmed.

CERTIFIED FOR PUBLICATION.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.
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Dodie A. Harman, Judge

Superior Court County of San Luis Obispo

______________________________

Gerald J. Miller, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, 

Supervising Deputy Attorney General, Eric J. Kohm, Deputy Attorney General, for 

Plaintiff and Respondent.